Kovalcik v. G. C. Murphy Co.

GLADDEN, J., This case reaches us on the preliminary objection of defendant in the nature of a demurrer, which claims the running of the statute of limitations. On May 22, 1967, plaintiff-wife fell on the sidewalk [403] in front of defendant’s place of business located at 630 McKean Avenue, Donora, Pa. On May 15, 1969, a praecipe for writ of summons in trespass was filed with the prothonotary by plaintiffs and issued to the sheriff where it was docketed. Subsequently, on January 25, 1971, the summons was reissued and served together with a complaint in trespass upon defendant at its place of business located on Main Street in Washington, Pa. Defendant objects to the service as being beyond the two-year statute of limitations and alleges that no good reason existed to excuse plaintiffs for delaying the service. We are asked to dismiss the complaint. Defendant cites as authority for its request the case of Amati v. Campbell decided by our court and reported at 51 Wash. 1 (1970). In that case, a praecipe for summons was filed but written across its face was the instruction, “Please do not serve.” Our court held in that case that the phrase, “Please do not serve,” rendered void the original summons, so that the statute of limitations continues to run. It is not alleged that any such phrase appears on the praecipe for summons in the within case. There is no question that here the summons was, in fact, issued by the prothonotary to the sheriff where it was docketed. Plaintiffs paid the docket fees to the sheriff but issued no affirmative instructions to have the summons served. It is defendant’s contention that the failure of plaintiffs to instruct the sheriff to serve the summons was tantamount to a “hold” order and, therefore, the two-year statute of limitations continued to run and was not tolled. We see an obvious distinction in the Amati case and the matter before us. A “Please do not serve” order was never given to the prothonotary in this [404] case. This court in Amati (DiSalle, J., dissenting) considered such instructions to nullify the praecipe, just as if it had never been filed at all. In the instant case, however, the summons was issued to the sheriff, which action carried it one step beyond the situation in Amati. Pennsylvania Rule of Civil Procedure 1007 provides that the action is commenced, inter alia, by praecipe for writ of summons. The commencement of the action tolls the statute of limitations. See Goodrich-Amram comments 1007-3. If the praecipe is a nullity because of the deliberate act of plaintiff in the manner of a “hold” order, the statute of limitations is not tolled. Absent such a deliberate act, then we regard the summons as having tolled the statute of limitations. So long as the summons is reissued and served with a complaint within two years from the date it was filed, the service is good. Defendant has cited the case of Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232 (1969), as stating the law on this question. We do not disagree here with the Peterson decision, but we are of the opinion that the factual situation there is so dissimilar to the matter now under consideration that Peterson has no application. We do, however, quote from that decision certain dicta which we believe is pertinent. Justice Pomeroy, at page 242, writes: “Plaintiffs here could have caused the reissuance of the writ at any time until September 9, 1966 two years from the filing of the original praecipe.” We believe that this dictum in the Peterson case is a correct statement of the law of Pennsylvania. We, therefore, hold that the action against the within defendant was commenced when the unrestricted praecipe for writ of summons was filed with [405] the prothonotary on May 15, 1969, and that the statute of limitations was tolled for a period of two years from that date. Since plaintiffs have caused the summons to reissue and have caused it to be served, together with their complaint, within the two-year period computed from May 15, 1969, we find that there has been good service and would dismiss the preliminary objections. Before making an order to accomplish that dismissal, however, we shall pass briefly on plaintiffs’ argument that the defense of statute of limitations has been improperly raised by preliminary objections. Plaintiffs claim that such a defense should be set forth as new matter in defendant’s answer. This would give plaintiffs an opportunity to answer the defense raised in the new matter. We have read the case of Goldstein v. Stadler, 417 Pa. 589, and concluded that the filing of preliminary objections in this case raising the defense of statute of limitations is improper. See also Sorgini v. Porter, 48 D. & C.2d 305 (1970). Since we have disposed of the question of whether or not the statute of limitations was tolled, we see no reason to allow defendant additional time in which to plead new matter raising this defense. To do so would invite the parties to the next session of argument court to argue that which has already been decided. Based on the above, we now enter the following ORDER And now, April 30, 1971, the preliminary objections filed by defendant are dismissed. Defendant shall have 20 days in which to file an answer.